Claude Frederick LAUTHERN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. 87-144.
Supreme Court of Wyoming.
Feb. 9, 1989.
769 P.2d 350
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Mary B. Guthrie, Sr. Asst. Atty. Gen., for appellee.
Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.
MACY, Justice.
Appellant Claude Frederick Lauthern appeals from his convictions of aggravated burglary, aggravated assault and battery, and attempted second-degree murder.
We affirm.
Appellant presents the following issues:
Issue I
Whether or not the trial court abused its discretion by allowing Mr. Nix to testify, or to provide an alternative remedy, after Mr. Nix was in the courtroom in spite of the court‘s order sequestering witnesses.
Issue II
Whether or not the trial court erred by failing to merge Appellant‘s charges or convictions of aggravated burglary and aggravated assault.
Issue III
Whether or not the introduction of evidence, in violation of Rule 404(b), W.R.E., deprived Appellant of a fair trial.
Appellant and Katherine Gunderman were married in 1978, and they divorced in August 1985. After the divorce, Ms. Gunderman frequently lived with appellant in his house in Casper, Wyoming, even though she had her own house in Casper from a previous marriage. Ms. Gunderman spent the night of January 25, 1986, with appellant, but, according to her, he kicked her out of his house on Sunday, January 26, 1986. Appellant and Ms. Gunderman both spent all day January 26 working at a VFW club. Ms. Gunderman left that club in the early evening and went to another VFW club in Casper where she met Alvin Rone, a man with whom she had been previously involved. Ms. Gunderman and Mr. Rone spent that night at Ms. Gunderman‘s house.
The testimony as to what occurred the following morning was conflicting, but the State‘s evidence, as accepted by the jury, indicated the following sequence of events. At approximately 9:30 a.m., Ms. Gunderman heard pounding on the door and realized that someone was trying to break into her house. She called the police. Appellant broke a window on the door and was able to reach inside to turn the lock, gaining entrance into the house. He shouted at Ms. Gunderman, “I‘m going to kill you. I‘m going to kill you.” Ms. Gunderman told appellant to leave, and she picked up the telephone to again call the police. Appellant grabbed the telephone away from her, and he hit her on the head several times with it. He then grabbed a knife and threatened Ms. Gunderman with it, apparently striking at her but not connecting. Appellant also threatened to kill Mr. Rone.
Aroused from sleep by the commotion, Mr. Rone proceeded to the kitchen where appellant jumped at him. At this point, Ms. Gunderman ran out of the house and went to a friend‘s house to call the police. In describing the ensuing melee, Mr. Rone testified that he saw something in appellant‘s hand but that he remembered very little after that because he was knocked unconscious and did not regain consciousness until after he had arrived at the hospital.
Appellant fled before the police arrived at Ms. Gunderman‘s house. The police found the door kicked in, Mr. Rone lying unconscious in a pool of blood, and a brick and telephone on the floor near Mr. Rone‘s body. Mr. Rone was taken to the hospital. Pieces of Mr. Rone‘s hair were found on the brick and telephone during laboratory tests. Medical testimony at trial indicated that Mr. Rone had been seriously injured, incurring multiple traumas and fractures, including a skull fracture. The medical testimony indicated that many of Mr. Rone‘s injuries appeared to be the result of blows with a blunt object.
I
In his first issue, appellant argues that the district court abused its discretion by allowing Vernon Nix to testify for the State or by not providing another remedy, because Mr. Nix was in the courtroom during voir dire in violation of the court‘s sequestration order. We disagree.
Exclusion of witnesses is provided for by
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may [issue] the order of its own motion.
(Emphasis added.) From its plain language, it is apparent that the rule contemplates sequestration only during the testimony of other witnesses. The rule is designed to “prevent the tailoring of evidence to conform to prior testimony and to assist the parties in detecting falsehoods and testimony which is less than candid.” Towner v. State, 685 P.2d 45, 47 (Wyo.1984). See also Pixley v. State, 406 P.2d 662 (Wyo.1965).
In this case, Mr. Nix was in the courtroom inadvertently and without the knowledge of either party. We agree with the trial court‘s assessment of the situation when, in denying appellant‘s motion to prohibit Mr. Nix‘s testimony, it stated:
[I]n any event, I listened to the voir dire and I didn‘t hear anything that would give him even a hint of what the trial was going to be about. I thought both counsel conducted the voir dire in a very open manner without regard to the facts of the case. I really don‘t see how he could have prejudiced himself by being present.
Even if we were to consider Mr. Nix‘s presence during voir dire a violation of the spirit of the rule, and it apparently was in violation of the court‘s order, we have previously stated that permitting witnesses to testify who have been in the courtroom in violation of a sequestration order is a matter addressed to the sound discretion of the court and that we would reverse only for an abuse of that discretion. Towner, 685 P.2d at 48; Whiteley v. State, 418 P.2d 164 (Wyo.1966). Here, there was no abuse of discretion, and the trial court properly allowed Mr. Nix to testify.
II
Appellant‘s second issue requires us to examine the question of double jeopardy/merger within the context of multiple punishments in a single trial. Courts, including this Court, have struggled with this often troublesome area of the criminal law.1 Recent decisions by the United States Supreme Court, however, and their
The prohibition against double jeopardy is found in both the
Appellant‘s contentions are essentially twofold. First, appellant argues that the State, in charging him with burglary, used the intent to commit an aggravated assault to elevate a criminal entry charge to burglary and, therefore, aggravated assault was an underlying felony to the burglary charge and conviction and the district court erred in not merging aggravated burglary and aggravated assault and battery. Second, although not as clearly presented, appellant seems to contend that the battery of Ms. Gunderman, employed by the State to elevate the charge of burglary to aggravated burglary, was part of the same transaction or same offense as the threatening of Ms. Gunderman with a knife, which formed the basis for the aggravated assault and battery charge, and, therefore, again the charges should have merged. We disagree as to both contentions.
Compounding the difficulty in this case is the fact that
Appellant was charged with aggravated burglary pursuant to
(a) A person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein.
* * * * * *
(c) [A person is guilty of aggravated burglary * * * if, in the course of committing the crime of burglary, the person:
(i) Is or becomes armed with or uses a deadly weapon or a simulated deadly weapon;
(ii) Knowingly or recklessly inflicts bodily injury on anyone; or
(iii) Attempts to inflict bodily injury on anyone.
(Emphasis added.) Aggravated assault and battery is defined in
(a) A person is guilty of aggravated assault and battery if he:
(i) Causes serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
(ii) Attempts to cause, or intentionally or knowingly causes bodily injury to another with a deadly weapon;
(iii) Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another; or
(iv) Intentionally, knowingly or recklessly causes bodily injury to a woman whom he knows is pregnant.
(Emphasis added.)
As a first step in the multiple punishments analysis, we must determine whether there is a clear expression of legislative intent that aggravated burglary and aggravated assault and battery be punished cumulatively. This is so because, “[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no[] more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). See also Garrett v. United States, 471 U.S. 773, 793, 105 S.Ct. 2407, 2418, 85 L.Ed.2d 764 (1985). “‘[T]he question of what punishments are constitutionally permissible is not different from the question of what punishment[s] the Legislative Branch intended to be imposed.‘” Birr, 744 P.2d at 1119 (quoting Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981)). Thus, we defer to clearly expressed legislative intent to impose multiple penalties for criminal conduct in a single trial. Schultz, 751 P.2d at 369; Hunter, 459 U.S. at 368-69, 103 S.Ct. at 679-80.
Therefore, with respect to appellant‘s argument that, in his case, aggravated burglary and aggravated assault and battery are of the same character, grow out of the same transaction, and are aspects of the same offense, it is clear that, even if appellant is correct in this contention, it simply does not matter if indeed the legislature intended cumulative punishments under the two statutes. Where a legislature specifically authorizes cumulative punishments under two statutes, a court‘s task of statutory construction is at an end, regardless if those two statutes prohibit the same conduct, and the trial court may impose cumulative punishments under the two statutes at the same trial. Id. In the instant case, however, neither of the statutes in question expressly authorizes cumulative punishments where both statutes have been violated in a single criminal episode. Appellant thus surmounts the first hurdle in his double jeopardy challenge.
We must next determine if the two statutes address the same conduct because, where two statutes proscribe the same offense, they are construed to not authorize cumulative punishments—absent clear legislative intent to the contrary. Id., 459 U.S. at 366, 103 S.Ct. at 678; Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980). This rule of construction emanates from the assumption that the legislature does not ordinarily intend to punish the same offense under two different statutes. Hunter, 459 U.S. at 366, 103 S.Ct. at 678; Whalen, 445 U.S. at 691-92, 100 S.Ct. at 1437-38. This is the underlying assumption of the Blockburger4 test, which will be discussed momentarily. Conversely, when the legislature creates two distinct offenses, the presumption is that it intends to allow cumulative punishments. Birr, 744 P.2d at 1122; Garrett, 471 U.S. at 793, 105 S.Ct. at 2418.
In determining whether the legislature intended the same or separate offenses, we first look to the plain language of the statutes, giving the words their plain and ordinary meaning. Schultz, 751 P.2d at 370. In so doing, we can dispose of appellant‘s contention that aggravated as-
The question of whether the aggravated burglary and aggravated assault and battery statutes were intended to proscribe the same offense cannot be so easily resolved. Looking at the language of
Where, as here, the legislative intent is not clear from the face of the statute, that intent is inferred from legislative history, the purpose of the statute, and the Blockburger test. Howard v. State, 762 P.2d 28, 32 (Wyo.1988). The dearth of legislative history in Wyoming generally renders inquiry into that domain to be of limited value. We note, however, that aggravated assault and battery has, in various forms, been statutorily proscribed since statehood. 1890 Wyo.Laws, ch. 73, § 22. Aggravated burglary, as a more serious form of burglary and incorporating factors similar to the current enactment, was not grafted onto the burglary statute until 1957. 1957 Wyo.Sess.Laws, ch. 185, § 1;
An examination of the purposes of the two statutes is also inconclusive as to legislative intent. Where independent but overlapping statutes are directed to separate evils, cumulative punishments are intended. Birr, 744 P.2d at 1121; Albernaz, 450 U.S. at 343, 101 S.Ct. at 1144. Although the prohibition against burglary is clearly intended to protect property and the security of the home, the additional factors which encompass aggravated burglary are similar to the aggravated assault and battery provisions in that they generally provide punishment for the infliction of, the attempt to inflict, or the threat of inflicting bodily injury. It is not clear, therefore, whether or not the two statutes are directed to separate evils.
At this point, consequently, we arrive at the Blockburger test as a tool for discerning legislative intent.5 The Blockburger test is a rule of statutory construction as opposed to a constitutional requirement. Birr, 744 P.2d at 1120; Hunter, 459 U.S. at 367, 103 S.Ct. at 678. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), held that:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.
Application of the above test to the overlapping provisions of
Although the preceding is dispositive as to appellant‘s double jeopardy claim, we also note that the same result is achieved, albeit much more simply, when we apply the “different evidence” test, a derivative of the Blockburger rule.6 In State v. Carter, 714 P.2d 1217, 1220 (Wyo.1986), we stated that, “where there is separate evidence of the two offenses, the offenses cannot be said to have merged.” In the instant case, the evidence supporting the aggravating burglary was the beating of Ms. Gunderman with the telephone—the infliction of bodily injury. On the other hand, the evidence supporting the aggravated assault consisted of appellant‘s threat to Ms. Gunderman with a knife. Clearly, there was separate evidence of the two offenses and, under the “different evidence” test, the offenses did not merge. Appellant‘s double jeopardy claim fails, therefore, under either a statutory or an evidence based application of Blockburger.
III
In his final issue, appellant contends that the introduction of prior bad acts evidence at trial violated
The evidence received at trial to which appellant now objects consisted primarily of testimony regarding previous instances of appellant‘s abusive treatment of Ms. Gunderman. The testimony on this point was fairly extensive. Ms. Gunderman‘s son, Robert Taylor, testified that appellant had assaulted Ms. Gunderman and that he, Taylor, had seen bruises on his mother. Ms. Gunderman testified to several prior instances of appellant‘s violence toward her, including his striking her, kicking her out of the house, administering a beating to her in the front yard of their home, breaking out her car window and jerking her out of her car, and threatening to kill her. In addition, the prosecutor referred to this testimony in both his opening and closing statements. The only objection raised to any of this testimony and argument was a relevancy objection to Ms. Gunderman‘s testimony that she constantly carried extra clothing in her car because of the repeated beatings and ejections from the house. This objection was overruled, and similar testimony was thereafter elicited without objection.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
We adhere to the general rule that evidence of other crimes, wrongs, or acts is normally not admissible in the trial of a criminal case. Noetzelmann v. State, 721 P.2d 579, 582 (Wyo.1986); Bishop v. State, 687 P.2d 242 (Wyo.1984), cert. denied, 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 345 (1985). As indicated by the rule, however, evidence of prior acts may be admitted for a variety of purposes, including the establishment of a course of conduct. Noetzelmann, 721 P.2d at 582; Evans v. State, 655 P.2d 1214 (Wyo.1982).
When an issue was not raised at trial, the appellant must establish that the alleged error was plain error. Lozano v. State, 751 P.2d 1326, 1327 (Wyo.1988); Gresham v. State, 708 P.2d 49 (Wyo.1985). Failure to object at trial constitutes a waiver of the alleged error unless the error rises to the level of plain error. Bradley v. State, 635 P.2d 1161, 1163-64 (Wyo.1981); Leeper v. State, 589 P.2d 379 (Wyo.1979). Appellant bears the burden of establishing plain error, and the rule is applied sparingly and only in special circumstances. Gresham, 708 P.2d at 55; Cutbirth v. State, 663 P.2d 888 (Wyo.1983). This Court applies a three-part test to determine if plain error has occurred. First, the record must clearly show the incidents alleged as plain error. Second, the appellant must demonstrate the violation of a clear and unequivocal rule of law. Finally, it must be shown that the appellant was materially prejudiced—that a substantial right of the appellant was adversely affected. Lozano, 751 P.2d at 1327; Gresham, 708 P.2d 49.
Here, the record plainly shows the incidents alleged as plain error. The record contains considerable testimony regarding appellant‘s prior abusiveness. Appellant‘s plain error contention, however, cannot surmount the requirement of demonstrating the transgression of a clear and unequivocal rule of law. The decisions of this Court have admittedly not established the exact parameters of
A sampling of recent decisions of this Court concerning
The difficulty I have is in finding a clear rule of law that will tell us in the future when bad-act evidence * * * is admissible and when it is not admissible.
736 P.2d at 1116 (Cardine, J., specially concurring) (emphasis added). More emphatically, in the dissenting opinion in that case, it was stated: “This case has just struck the final death blow to
The State argues that the evidence in this case of appellant‘s prior abusive treatment of Ms. Gunderman was admissible under the course of conduct exception. This assertion is questionable. What is not in doubt, however, as illustrated by the above cases, is that admission of this evidence did not transgress a clear and unequivocal rule of law. Under the circumstances, therefore, it was essential that an objection be made at trial, thereby giving the district court an opportunity to rule on admissibility and providing an adequate record by which we could review the reasoning of the district court. See Bradley, 635 P.2d 1161. Appellant has failed to establish plain error, and we need not reach the question of material prejudice.
AFFIRMED.
URBIGKIT, J., files a dissenting opinion.
URBIGKIT, Justice, dissenting.
This triangle involved ex-husband/defendant/appellant Lauthern, his ex-wife/sometimes present housemate, Katherine Gunderman, and her sometimes boyfriend, Alvin Rone. Rone and Lauthern were hostile for more reasons than their separate complicating romantic interests in Gunderman. Events came to a climax when Lauthern, fretting all night that Gunderman had not come home, located her with Rone the next morning at her separate residence. Cultivating emotion into high anger, Lauthern broke into the house where Gunderman and the still intoxicated Rone had spent the late evening and early morning.
It was from the fracas that resulted that Lauthern was charged with and sentenced after conviction for attempted second degree murder of Rone, aggravated assault on Gunderman and aggravated burglary of the residence where the two people were located. I dissent from the majority‘s affirmation of the convictions for both aggravated assault and aggravated burglary. In my opinion, the trial court accurately assessed the unitary nature of the case in its sentence by entering penitentiary confinement of not less than three nor more than five years for the aggravated assault and suspended sentences for both the conviction of aggravated burglary and attempted second degree murder, with all sentences to run concurrently for this sixty-two-year-old man.
Initially, I could dispose of this appellate issue—questioning the duplicity or double jeopardy in separate charges for the assault as well as the burglary—on a concurrent sentence doctrine. Driskill v. State, 761 P.2d 980 (Wyo.1988); Emanuel, The Concurrent Sentence Doctrine Dies a Quiet Death—Or Are the Reports Greatly Exaggerated?, 16 Fla.St.U.L.Rev. 269 (1988). Unfortunately, the majority chose to justify the overlapping and duplicitous charges with which result I presently dissent because of possible future precedent in a case where the issue really matters to the convicted individual.
Obviously, the entry was a factual constituent of the resulting mayhem. The assault on Gunderman was the aggravation factor within which aggravated burglary could be extruded. I have no great difficulty with the citations of the various cases by the majority or disagreement in relevant principles as we journey from the historical Wyoming law of the transactional limitation for double jeopardy through Carter v. State, 714 P.2d 1217 (Wyo.1986) to Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) and the confused and complicating cases in numerous number from the United States Supreme Court, federal courts and state tribunals that have since followed in review of the double jeopardy and duplicitous charging analyses. Since Carter, 714 P.2d 1217, this court has not been spared as the issues have been more recently visited in Schultz v. State, 751 P.2d 367 (Wyo.1988) and Birr v. State, 744 P.2d 1117 (Wyo.1987). See Note, Criminal Procedure—Consecutive Sentences for Felony Murder and the Underlying Felony: Double Jeopardy or Legislative Intent? Birr v. State, 744 P.2d 1117 (Wyo.1987), XXIII Land & Water L.Rev. 603 (1988).
I find the general rules improperly applied here which also occurred in Birr, 744 P.2d 1117, in that we extrapolate a lesser included offense to create a separate crime. Clearly, the constitutional issue raised by the lesser included offense doctrine involves the Fifth Amendment, that no person shall be subject for the same offense to be twice put in jeopardy of life and limb. This provision protects against both multiple prosecution and multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969), as recited and substantiated in State v. Jeffries, 430 N.W.2d 728, 734 (Iowa 1988).
In this case, in the context of the angered ex-husband/boyfriend, the assault was the aggravation for the aggravated burglary conviction as the constituent felony to be differentiated from whatever property damage offense might be committed by forceful and unacceptable entry. My special concurrence in Schultz, 751 P.2d 367 and dissent in Birr, 744 P.2d 1117 define a present concern about a result that essentially extrapolates the lesser included to create a separate crime which is contrary to both the general law and the interpretative posture of Blockburger, 284 U.S. 299, 52 S.Ct. 180 to require a separate element for each charge.
In excellent analysis and carefully defined text, the Iowa Supreme Court in Jeffries, 430 N.W.2d 728 defines and illuminates the factors and function of the lesser included offense doctrine. That case probably provides the most academically considered and comprehensively enumerated dissertation on the subject which can be found in any recent case review. Without extended reference, it would realistically appear that Wyoming has followed the decisional approach of Iowa in acceptance of the common law or strict statutory elements approach. Wyoming provides by
The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.
See Goodwine v. State, 764 P.2d 680 (Wyo.1988); Simonds v. State, 762 P.2d 1189 (Wyo.1988); Driskill, 761 P.2d 980; and Griego v. State, 761 P.2d 973 (Wyo.1988). In this application, at least generally by definition, a lesser included offense is enveloped within the confines of the principal offense so that some contended, unproven fact, such as intent, justifies diminution of penalty to the less severe charge.
Further, in Jeffries, 430 N.W.2d at 734-35, we perceive:
The lesser-included offense doctrine comes into play in determining what is a “same offense” for double-jeopardy purposes. Ex parte Nielsen, 131 U.S. 176, 188, 9 S.Ct. 672, 676, 33 L.Ed. 118, 122 (1889). According to Nielsen, if an offense is a lesser-included one of the offense charged, a conviction or acquittal of the charged offense bars a subsequent prosecution of the lesser offense. Id. Further, a conviction or acquittal of the lesser-included offense bars a subsequent prosecution of the greater offense.
In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932), the Supreme Court laid down the following test for determining the “same offense” for double-jeopardy purposes: “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” This test parallels the strict statutory-elements approach. Ettinger, 50 Brooklyn L.Rev. at 218.
In factual recitation where I depart from the majority, is in their analysis with regard to the differentiated elements of aggravated burglary as requiring “inter alia, (1) proof of unlawful entry with (2) the intent to commit * * * a felony therein,” where the assault was the felony since clearly Lauthern was vengeful but not larcenous. Obviously, a person can commit burglary without committing assault, but in this case, the activity constituent within the burglary and aggravated burglary charge was the indispensable lesser included assault and aggravated assault conduct.
It is in the essential nature of serious criminal conduct that the proscribed activity or course of felonious behavior can be expected to invade more than one criminal statute or at least to invoke a more serious charge for which, with some factor deleted, a lesser included offense will be involved. For this reason, the cases on this dual subject of double jeopardy and lesser included offense are vastly variant in character and numerous in number beyond any reasonable review or citation. However, somewhat immediately similar in nature is Ramsey v. State, 183 Ga.App. 344, 358 S.E.2d 902 (1987), invoking inquiry of whether aggravated assault would be the lesser offense of armed robbery. In finding that the assaultive activity constituted the effort to carry the armed robbery into effect, that court determined that the conviction for aggravated assault merged into the armed robbery and consequently the aggravated assault conviction had to be set aside. See Hambrick v. State, 256 Ga. 148, 344 S.E.2d 639 (1986); Koenig, The Many-Headed Hydra of Lesser Included Offenses: A Herculean Task for the Michigan Courts, 1975-76 Det.C.L.Rev. 41, 68 (1975); and Blair, Constitutional Limitations of the Lesser Included Offense Doctrine [Double Jeopardy], 21 Am.Crim.L.Rev. 445, 455 (1984). “Clearly, then, the impact of the standard chosen to identify a lesser included offense is that by implication it serves to delineate the scope of the double jeopardy protection afforded to the defendant.” Ettinger, In Search of a Reasoned Approach to the Lesser Included Offense, 50 Brooklyn L.Rev. 191, 219 (1984). The transgressions pursued by Lauthern in his unprovoked entry and assault are adequately served by one conviction in addition to the separate offense of attempted second degree murder of Rone. State v. Wood, 208 Conn. 125, 545 A.2d 1026, cert. denied 488 U.S. 995, 109 S.Ct. 235, 102 L.Ed.2d 225 (1988); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Pearce, 395 U.S. 711, 89 S.Ct. 2072; Note, A Closer Look at the Supreme Court and the Double Jeopardy Clause, 49 Ohio St.L.J. 799 (1988).
Consequently, I respectfully dissent from a decision affirming three felonies which